Coming of Age

Tom Gilley had been through it before: the termination, the humiliation, the uneasy feeling in the pit of his stomach that something just wasn't right. At 52, he was fired as regional marketing director for an employee benefits company, discarded like so much spoiled meat along with four other senior executives because some corporate higher-up thought they were too old and making too much money. Two of them sued for age discrimination and won, Gilley says, "but I was befuddled at the time and thought it was just a personality clash. Now I know they got rid of us because we were older."

Gilley kicked around the corporate world for three more years, but ever since he was a boy in Oklahoma, where he idolized his neighbor who was a state trooper, he longed to be in law enforcement. In 1993, he applied for police work in Richardson, Collin County and the Dallas County Sheriff's Department, but only the sheriff was hiring. Though Gilley wanted to be a deputy, new hires in the sheriff's department begin as detention service officers, and Gilley first had to do time in Lew Sterrett, booking prisoners into and out of the county jail. In 1994, he applied for entrance into the deputy sheriff's academy but was denied a slot after he scored poorly before an oral examination board. Because he found it suspicious that older officers received low scores on their orals, and Gilley had aced the more objective written exam, he filed an age discrimination grievance with the county. But lost.

Undaunted, Gilley, at age 60, applied to the academy again, but this time was accepted in 1996, though just barely. After 13 weeks of training, however, he was rejected because he had failed one of the six physical agility tests--the one-mile run--required to graduate from the academy. But that didn't make sense to him: He had always been able to compete physically with men half his age. He was 48 when he resigned from his Army Reserve unit, which had rigorous fitness standards. He suspected the sheriff's department had set him up to fail, employing fitness criteria that seemed nearly impossible to pass for someone his age. Certainly Sheriff Jim Bowles had the right to require that his officers meet a minimum standard of fitness for duty. But Gilley would contend that the sheriff had no right to discriminate in the way he administered those standards, which effectively promoted younger officers at the expense of older, most of whom were drummed out of the academy for being physically unfit.

"This [age discrimination] happened to me once in the private sector," Gilley says. "I just wasn't going to let it happen again."

At first blush, it appeared as though Sheriff Bowles was attempting to do things by the book. By 1995, his department had consulted with the Cooper Institute for Aerobic Research in Dallas and adopted at least three of its physical fitness tests--a one-minute sit-up test, a one-minute push-up test, a sit-and-reach test--almost verbatim. The standard of performance for each task was adjusted for gender as well as age, the latter broken into five categories: 20-29, 30-39, 40-49, 50-59, 60 and older. Cooper maintained that its standards were not only "scientifically valid" but also were "defensible if challenged in court." When it came to the running test, Cooper recommended a 1.5-mile run for its five age brackets, which the sheriff's department inexplicably compressed to a one-mile run and two age brackets. Males 20-39 were required to run the mile in nine minutes; those 40 and older had nine minutes, 30 seconds to go the distance.

"By compressing it in the way they did, they gave the younger group an extra 48 seconds to run the mile and took 45 seconds away from the older group," says Gilley's attorney Ken Molberg.

Gilley could have used those 45 seconds. He ran the mile in 10 minutes and 15 seconds. Although he comfortably exceeded the minimum score on the other fitness tests, he was immediately removed from the academy and ordered to return to the jail as a detention officer. "They said I couldn't become a deputy because I didn't run the mile fast enough," he says.

Even though the department claimed its physical assessment standards "had been validated and were absolute," Gilley says, "meaning they could legally discriminate against us since passing was a job requirement," he pressed his case with the Equal Employment Opportunity Commission in December 1996. After a three-year investigation, the EEOC found the department guilty of age discrimination and encouraged the parties to mediate their dispute. But when the county's lawyers "made no concessions whatsoever," Gilley says, "they left me no choice but to sue."

It didn't hurt his lawsuit that in the six academy classes that had been put to the agility tests, all the deputy cadets older than 55 had failed or that 57 percent of those over 40 failed compared with 11 percent of those under 40. "There was a clear pattern of them tightening the standards on the older group and loosening the standards on the younger," Molberg says. "There is no doubt in my mind they knew what they were doing."

Although the sheriff's department refused to comment on this story, citing the pending litigation, in court papers the department denied it had discriminated against Gilley, either directly or through its testing procedure. Instead, the department claimed it had a reasonable basis for differentiating Gilley from those who had made deputy because agility tests are necessary for the normal operation of the sheriff's department.

"The law says you can have an agility test that may have a disparate impact on the basis of age, if that standard is necessary to predict good performance on that job," says Rogge Dunn, board certified labor and employment law attorney with the Dallas firm of Clouse Dunn Hirsch. "It might be necessary if someone is going to be a good policeman, fireman or Marine. But you still have to show the standard is reasonably related to job performance."

It didn't help the department's case that once a cadet actually became a deputy, he or she was never required to take an agility test again. "It wasn't a standard to predict success on the job; it was a standard to exclude people from the job," Molberg argues. "They were using it as a screening device to keep the older officers out."

Despite all the legal standards and jargon, says attorney Dunn, "The one thing that drives a jury's decision in most employment cases is whether or not the employer was fair." It took a unanimous jury less than three hours on June 6 to find that the Dallas County Sheriff's Department had "willfully" discriminated against Gilley, and then award him nearly $300,000 in damages. During its deliberations, the jury sent out a note asking if it could also award him the rank of deputy.

Although the county disagrees with the verdict and plans to appeal, Gilley believes he has already done some good. During the trial, a witness for the sheriff's department admitted that it now bases its mile run on five age categories rather than two. Because he stood up to the county and won, Gilley has become something of a folk hero among his peers. And yet, at 66, he has given up on his dream of becoming a deputy. He is eligible to retire in 13 months and frankly admits that when he was going through the academy, he was in better shape than he is now. "I got married last year to a wonderful woman, and I have put on a little weight."

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Mark Donald
Contact: Mark Donald

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